Resolution No. 6692
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RESOLUTION NO. 6692
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A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
VERNON APPROVING AND AUTHORIZING THE EXECUTION
OF A SETTLEMENT AGREEMENT RELATING TO LOS
ANGELES SUPERIOR COURT CASE NO. BC 104302 BY AND
BETWEEN THE CITY OF COLTON AND THE CITY OF
VERNON
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WHEREAS, on May 6, 1994, the Cities of Anaheim, Colton,
Riverside, Azusa and Banning filed an action against the City of
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Vernon in the Los Angeles Superior Court, Case No. BC 104302,
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alleging a right to reimbursement on certain contracts concerning
the California-oregon Transmission Project; and
WHEREAS, the City of Vernon has been negotiating with the
individual cities in an attempt to compromise each of their
respective claims in the litigation; and
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WHEREAS, the City of Vernon and the city of Colton wish
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to enter into a full settlement of each of their respective claims
in the above-referenced litigation; and
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WHEREAS, said settlement is not an admission or a
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determination by the City of Vernon as to the merits of any claims
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or allegations raised by the City in said litigation.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
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CITY OF VERNON AS FOLLOWS:
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SECTION 1: The City Council of the City of Vernon does
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hereby find and determine that the recitals contained hereinabove
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are true and correct.
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SECTION 2: The City Council of the city of Vernon hereby
approves the Settlement Agreement by and between the City of
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Colton and the City of Vernon, the original Agreement has been
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presented to the City Council concurrently with this resolution,
and the City Council hereby orders said Agreement to be received
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and filed by the City Clerk.
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SECTION 3: The City Council of the City of Vernon hereby
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authorizes the Mayor and the City Clerk to execute said Agreement
for, and on behalf of, the City of Vernon.
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SECTION 4: The City Clerk of the City of Vernon shall
8 certify to the passage of this resolution and thereupon and
9 thereafter the same shall be in full force and effect.
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APPROVED AND ADOPTED this 3rd day of October, 1995.
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14 BRUCE V. MALKENHORST, City Clerk
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1 STATE OF CALIFORNIA
2 COUNTY OF LOS ANGELES
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I, BRUCE V. MALKENHORST, City Clerk of the City of
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Vernon, do hereby certify that the foregoing Resolution, being
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Resolution No. 6692, was duly adopted by the city Council of the
City of Vernon at a regular meeting of the city Council duly held
on Tuesday, October 3, 1995, and thereafter was duly signed by the
Mayor of the City of Vernon.
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BRUCE V. MALKENHORST, city Clerk
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SUPPORTING
DOCUMENTS
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SETTLEMENT AGREEMENT BETWEEN
THE CITY OF COLTON
AND
THE CITY OF VERNON
RELATING TO
LOS ANGELES SUPERIOR COURT
CASE NO. Be 104302
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TABLE OF CONTENTS
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1.0 PARTIES
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2.0
RECITALS .
3.0 TERM OF AGREEMENT
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4.0 AGREEMENT . . . . . . . . . . . . . .
4.1 Non-firm Transmission Service. .
4.2 Dismissal of Action. . . .
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5.0 BILLING AND PAYMENT
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6.0 AUTHORIZED REPRESENTATIVES.
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7.0 LIABILITY AND INDEMNITY
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8.0
NONPRECEDENT AND RESERVATION
8.1 Nonprecedent . . . . .
8.2 Non-Admission By Vernon
8.3 Non-Opposition to Other
OF RIGHTS .
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Settlement Aqreements .
14 9.0 PREVIOUS COMMUNICATIONS
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10.0 NONSEVERABILITY
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11.0 NONWAIVER OF CONTRACTUAL RIGHTS
12.0 UNCONTROLLABLE FORCE. .
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13.0 NONDEDICATION OF FACILITIES
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14.0 NOTICES . . . . . . . . . . . . . .
15.0 RELATIONSHIP OF PARTIES . . . . . . . . . . .
16.0 NO THIRD PARTY RIGHTS . . . . . . . .
17.0 ASSIGNMENT . . . . . . . . . . . . . . . . . . . . . .
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18.0 GOVERNING LAW AND REGULATIONS
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19.0 CONSTRUCTION OF AGREEMENT
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20.0 CAPTIONS AND HEADINGS
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21.0 SIGNATURE CLAUSE. . . .
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Page
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SETTLEMENT AGREEMENT
BETWEEN
THE CITY OF COLTON
AND
THE CITY OF VERNON
RELATING TO
LOS ANGELES SUPERIOR COURT CASE NO. BC 104302
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7 1. 0 PARTIES
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The parties to this settlement agreement ("Agreement") are
9 the City of Colton, a municipal corporation of the state of
10 California ("Colton") and the City of Vernon, a municipal
11 corporation of the state of California ("Vernon"). Each signatory
12 is a Party and collectively are the Parties.
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2.0 RECITALS
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This Agreement is made with reference to the following facts,
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among others:
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2.1 The Parties are engaged in the generation, transmission,
and/or distribution of electric power and energy in the
southwestern united states.
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2.2 Vernon has the right to use and sell transmission
service on the Pacific DC intertie between NaB and Sylmar.
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2.3 The cities of Anaheim, Colton, Riverside, Azusa and
22 Banning, filed an action in the Superior Court of the state of
23 California, County of Los Angeles, Case No. BC 104302, ("the
24 Action"), on May 6, 1994, alleging a right to reimbursement on
25 certain contracts pertaining to the California-oregon Transmission
26 Project. Vernon denies the existence of such a right.
27 2.4 In order to limit the time and expense of lengthy and
28 complex litigation, Vernon has been negotiating with the
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1 plaintiffs in the Action collectively and individually, and Colton
2 is willing to individually compromise its claims in the Action as
3 set forth herein and to file a dismissal in the Action with
4 prejudice.
5 2.5 This Agreement is entered into by the Parties in good
6 faith and in full settlement of each such respective claim in the
7 Action and, with the stipulation that this Agreement is not a
8 determination or admission as to the merits of any claims or
9 allegations set forth in the Action and shall not be admitted in
10 evidence in any proceeding other than to prove the terms and
11 conditions of this Agreement.
12 3.0 TERM OF AGREEMENT
13 This Agreement shall become effective on the date last herein
14 mentioned when signed by the Parties hereto and shall remain in
15 effect until completion of performance, including payment of all
16 bills for service, or shall terminate in any event on July 1,
17 1999, and the Parties' rights shall expire on said termination
18 date.
19 4.0 AGREEMENT
20 Inconsideration of the mutual covenants contained herein,
21 the Parties agree as stated herein.
22 4.1 Non-firm Transmission Service. Vernon shall provide to
23 Colton the option to purchase from Vernon up to ten megawatts
24 (10 MW) of Non-firm Transmission Service on the Pacific DC
25 Intertie between NOB and Sylmar for the months of March, April,
26 May and June of 1996, 1997 and 1998. If Colton does not provide
27 prior notice to Vernon by February 20 of each year of its intent
28 to exercise the option to purchase such Service during said year,
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1 the next scheduled hour by Vernon or immediately interrupted if
2 Vernon receives notification, or is interrupted without
3 notification, for a system emergency or an unscheduled reduction
4 in Vernon's capacity entitlement on the Pacific DC Intertie.
5 4.1.4 Colton and other third parties who have
6 purchased non-firm transmission service from Vernon through
7 settlement agreements in the Action and Vernon shall have priority
8 service over other non~firm schedules and shall share such
9 capacity on a pro rata basis except as provided in section 4.1.2
10 above.
11 4.1.5 If preschedules cannot be established as
12 requested by Colton because of Vernon's lack of transmission
13 capacity or if Colton's existing schedule is reduced during real
14 time, then Colton can request Vernon to pay, and Vernon shall pay
15 Colton fifty cents per megawatt hour ($0.50jMWh) for the amount of
16 transmission service not made available on a prescheduled basis or
17 curtailed by Vernon's dispatchers. If Colton requests the payment
18 of fifty cents per megawatt hour ($O.50jMWh) for such service,
19 then Vernon's obligation to provide such Non-firm Transmission
20 Service, as noticed by Colton pursuant to section 4.1, shall be
21 reduced by a like amount. Upon the reduction of such noticed
22 service, Colton's obligation to pay fifty cents per megawatt hour
23 ($O.50jMWh) shall also be reduced by such like amount.
24 4.1.6 Colton shall be responsible for transmission
25 losses associated with its schedule of such service and shall pay
26 any other charges Vernon incurs which are directly related to its
27 schedule of such service (e.g., Edison dispatching and scheduling
28 fees). Colton shall either return (1) energy to Vernon pursuant
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1 to Edison1s standard procedures for payment for transmission
2 losses, or (2) agree with Vernon to pay monetary compensation in
3 lieu of scheduling such energy to Vernon, or (3) upon securing
4 Vernon and Edison's approval, deliver energy directly'to Edison as
5 payment for losses.
6 4.2 Dismissal of Action. Colton shall within sixty (60)
7 days of the execution of this Agreement file a dismissal with
8 prejudice of the Action. Upon failure to file a dismissal, Colton
9 stipulates that Vernon may file this Agreement with the Court as a
10 stipulation for dismissal with prejudice of the Action.
11 5.0 BILLING AND PAYMENT
12 5.1 Billing and payment with respect to Non-Firm
13 Transmission Service hereunder shall be based upon the following:
14 5.1.1 Vernon shall bill Colton for the amount of Non-
15 Firm Transmission Service noticed pursuant to 4.1 above and all
16 other charges associated with such service provided for in this
17 Agreement.
18 5.1.2 Vernon shall credit Colton as requested pursuant
19 to 4.1.5 above for all scheduled Non-Firm Transmission Service
20 which Vernon curtails or interrupts during the billing period.
21 5.1.3 Billing shall be based on the records of the
22 respective power schedulers or dispatchers in the form directed by
23 the Authorized Representatives, exc~pt as the Authorized
24 Representatives may arrange otherwise for particular situations.
25 5.2 A bill for Non-Firm Transmission service provided under
26 this Agreement shall be rendered monthly by the selling Party on
27 or before the 20th of the month following the month in which such
28 Transmission service is received. Bills received shall be due by
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1 the fifteenth (15) calendar day from the date of such receipt.
2 Amounts not paid on or before the due date shall be payable with
3 interest at the rate of one percent (1%) per month from the due
4 date to date of payment.
5 5.3 In case a bill or any portion thereof is in dispute, the
6 full amount shall be paid when due. If the disputed amount is
7 determined to be incorrect, such amount shall be refunded promptly
8 upon determination, with interest accrued at the rate of one
9 percent (1%) per month computed from the original due date to the
10 date the adjustment is made.
11 5.4 Notices and demands shall be addressed to the respective
12 Parties as set forth in section 14.0.
13 6.0 AUTHORIZED REPRESENTATIVES
14 6.1 Each Party shall designate an Authorized Representative.
15 Such Authorized Representative shall be authorized to act on
16 behalf of such Party in carrying out the provisions of this
17 Agreement and to provide liaison between the Parties. Each Party
18 shall notify each other Party within thirty (30) calendar days
19 after execution of this Agreement of the designation of its
20 Authorized Representative and shall promptly notify each other
21 Party of any subsequent changes in such designation.
22 6.2 The Authorized Representatives shall have no authority
23 to modify any of the provisions of this Agreement unless
24 specifically set forth herein.
25 6.3 Disputes on any matter relating to this Agreement shall
26 be discussed and resolved by the Authorized Representatives, who
27 shall use their best efforts to amicably and promptly resolve the
28 dispute. If the Authorized Representatives are unable to resolve
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1 the dispute, the matter shall be referred to the chief executive
2 officers of each Party's utility department for resolution.
3 7.0 LIABILITY AND INDEMNITY
4 7.1 Each party shall indemnify and save each other Party
5 harmless from liability, loss, damage, claim, costs, and expenses
6 (including attorney fees) on account of injury to persons
7 (including death), or damage or destruction or property,
8 occasioned by the sole negligence, whether active or passive, or
9 the intentional wrongdoing, of the indemnifying Party's officers,
10 directors, employees, or contractors; provided, however, that:
11 7.1.1 Each Party shall be solely responsible for the
12 claims or any payments to any employee or agent for injuries
13 occurring in connection with their employment or arising out of
14 any Workmen's compensation law.
15 7.1.2 No Party shall be liable for any loss of
16 earnings, revenues, indirect or consequential damages, or injury
17 which may occur to the other as a result of outages in delivery of
18 energy or service hereunder by reason of any cause whatsoever,
19 including negligence.
20 7.2 Each Party shall indemnify and save each other Party
21 harmless for any liability, loss, claim, cost (including attorney
22 fees) for any claims made by the indemnifying Party's electric
23 service customers as a result of any failure of a party to provide
24 electric power or energy contemplated by this Agreement for any
25 reason or any cause whatsoever including the negligence of each
26 other Party.
27 8.0 NONPRECEDENTAND RESERVATION OF RIGHTS
28 8.1 Nonprecedent. None of the principles or the
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1 methodologies underlying this Agreement shall be deemed by any
2 Party as binding precedent in any proceeding or litigation except,
3 to the extent specifically stated herein.
4 8.2 Non-Admission By Vernon. By its execution of this
5 Agreement, Vernon does not admit to and hereby denies any
6 allegations relating to any of the activities raised by the
7 Plaintiffs in the Action.
8 8.3 Non-Opposition to other Settlement Aqreements. Colton
9 agrees not to oppose or otherwise challenge any settlement
10 agreement between Vernon and any other party to the Action.
11 9.0 PREVIOUS COMMUNICATIONS
12 This Agreement contains the entire agreement and
13 understanding between the Parties as to the subject matter herein,
14 and supersedes all prior agreements, commitments, representations,
15 and discussions between the Parties.
16 10.0 NONSEVERABILITY
17 This Agreement is subject to each and every condition set
18 forth herein, and each term of this Agreement is in consideration
19 and support of every other term.
20 11.0 NONWAIVER OF CONTRACTUAL RIGHTS
21 The failure of any Party to insist promptly in anyone or
22 more instances upon strict performance of any provision of this
23 Agreement, or to enforce any of its rights, shall not be construed
24 as a waiver of any such provision or the relinquishment of any
25 such rights.
26 12.0 UNCONTROLLABLE FORCE
27 No Party shall be considered to be in default in the
28 performance of any of its obligations hereunder other than the
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1 obligation of a Party to make payment, when a failure of
2 performance shall be due to an uncontrollable force. The term
3 "uncontrollable force" shall mean any cause beyond the control of
4 the Party unable to perform such obligation, including, but not
5 limited to, failure of or threat of failure of facilities, flood,
6 earthquake, storm, fire, lightning, and other natural
7 catastrophes; epidemic, war, riot, civil disturbance or
8 disobedience, strike, labor dispute, labor or material shortage,
9 sabotage, government priorities, and restraint by court order or
10 public authority, and action or nonaction by or failure to obtain
11 the necessary authorizations or approvals from any governmental
12 agency or authority, which by exercise of due diligence such party
13 could not reasonably have been expected to avoid and which by
14 exercise due diligence it shall be unable to overcome. Nothing
15 contained herein shall be construed as to require a Party to
16 settle any strike or labor dispute in which it may be involved.
17 13.0 NONDEDICATION OF FACILITIES
18 No undertaking by one Party to another under any provision
19 of this Agreement shall constitute the dedication of the electric
20 system or any portion thereof of such Party to the public or to
21 the other Party, and it is understood and agreed that any such
22 undertaking by any Party shall cease upon the termination by such
23 Party of its obligations hereunder.
24 14.0 NOTICES
25 14.1 Any formal notice, demand or request provided for in
26 this Agreement, or served, given or made in this Agreement, or
27 served, given or made in connection with it, shall be in writing
28 and shall be deemed properly served, given or made if delivered in
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1 person or sent by united Sates, mail, postage prepaid, to the
2 person specified below:
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To Colton:
Attention: Director of Public Works
650 North La Cadena Drive
Colton, CA 92324-2893
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To Vernon:
Attention: Chief Executive Officer of Light
and Power
Light and Power Department
4305 Santa Fe Avenue
Vernon, CA 90058-0805
14.2 Either Party may at any time and from time to time, by
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9 notice to each other Party, change the designation or address of
10 the person so specified as the one to receive notices pursuant to
11 this Agreement.
12 15.0 RELATIONSHIP OF PARTIES
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The covenants, obligations and liabilities of the Parties
14 are intended to be several and not joint or collective. Nothing
15 contained in the Agreement shall be construed to create an
16 association, joint venture, trust, agency, or partnership. Each
17 Party shall be individually responsible for its own covenants,
18 obligations and liabilities as provided in this Agreement. No
19 Party shall be under the control of or shall be deemed to control
20 another Party. No Party shall be the agent of or have a right or
21 power to bind another Party without such other Party's express
22 written consent.
23 16.0 NO THIRD PARTY RIGHTS
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The Parties do not intend to create rights in, or to grant
25 remedies to, any third party as a beneficiary of this Agreement or
26 of any duty, covenant, obligation or undertaking established
27 herein.
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1 17.0 ASSIGNMENT
2 No Party shall assign or otherwise transfer this Agreement,
3 or its right or interest or any part thereof to any third party,
4 without the prior written consent of each other Party except as
5 set forth herein. Such consent shall not be unreasonably
6 withheld. No assignment of this Agreement shall relieve the
7 assigning party of its obligations until such obligations have
8 been assumed in writing by the assignee.
9 18.0 GOVERNING LAW AND REGULATIONS
10 This Agreement shall be interpreted, governed, and construed
11 under the laws of the State of California as if to be performed
12 wholly within the State of California.
13 19.0 CONSTRUCTION OF AGREEMENT
14 Ambiguities or uncertainties in the wording of this
15 Agreement shall not be construed for or against the parties, but
16 shall be construed in a manner that most accurately reflects the
17 intent of the Parties, as expressed when this Agreement was
18 executed and as is consistent with the nature of the rights and
19 obligations of the Parties with respect to the matter being
20 construed.
21 20.0 CAPTIONS AND HEADINGS
22 All captions and headings appearing in this Agreement are
23 inserted to facilitate reference and shall not govern the
24 interpretations hereof.
25 21.0 SIGNATURE CLAUSE
26 The signatories hereto represent that they have been
27 appropriately authorized to enter into this "Settlement Agreement
28 Between the City of Colton and the city of Vernon, Relating to
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Superior Court Case No. BC 104302" on behalf of the Party for
which each signs. This Agreement is entered into on this /9 ~
day of &(1h~ , 1995.
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ATTEST:
BY:-I~{)_ ~
TITLE: CITY CLERK
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CITY OF COLTON "~" ",
BY: /eJ.u~ '---
TITLE: MA YOR
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APPROVED AS TO FORM:
By~m~
TITL : CI'lY ATIORNEY
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Seal:
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CITY OF VERNON
BY: ~~~~~',
-- eonl.S l;. Ma(tourg
TITLE: Mayor
::~ES~ /ft~
BRUCE V. MALKENHORST
20 TITLE: city Clerk
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APPROVED AS TO FORM:
BY: S;d. ~EAR~./l~---?~~
24 TITLE: City Attorney
25 Seal:
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